Intellectual Property Law Protects Property Holder, Not Society As Intended

Patently Ridiculous

Americans think of the granting of patents as a benevolent process that lets inventors enjoy the fruits of their hard work and innovations. But times have changed. The definition of what is patentable has slowly evolved to include business practices and broad ideas. The fact that the Smucker's company went to court over patents on peanut butter and jelly sandwiches might have provoked chuckles. But it became a symbol of a system gone awry.

Technological advances raise new questions with each passing year. Should genes be patentable? What about life forms? The high-tech and pharmaceutical industries find themselves at odds on reform because patents affect their businesses so differently. The understaffed Patent and Trademark Office needs to draw the line between a real innovation and an obvious concept that should be freely available as a building block for future generations of creative thinkers.

Meanwhile, profiteers, including lawyers and hedge funds, have turned the very purpose of patent rights — to encourage people to invent and produce — on its head, using them to tax, blackmail and even shut down productive companies unless they pay high enough ransoms. These so-called patent trolls have emerged as the villains in this intellectual property debate.

The possibility of this sort of abuse is inherent in the concept of patents, which in this country allow no one to produce or sell a patented product for up to 20 years without a license from the patent holder. Our nation's founders considered intellectual property important enough to include in the Constitution, but did not establish the system for the sake of the inventor. It exists for the sake of society, or, as it says in the Constitution, "to promote the progress of science and the useful arts."

Now the pendulum has swung so far in the direction of the patent holder that many experts say we are not only restricting competition, but discouraging research and innovation as well. More patents are slipping through that are not new, like the peanut butter and jelly sandwich, or that should be obvious, like the migration of a simple business practice onto the Internet or a mobile device.

The intent of protecting intellectual property was to preserve the incentive for individuals to spend their time inventing, creating, writing and developing whathe Constitution calls the "useful arts and sciences." It is clear from the language of the Constitution that intellectual property rights are to be granted in order to balance creativity, the business rights of the inventor and the benefits to society. Far too often, the laws have been written in an off-balance manner that tilts the benefits almost exclusively to the owner of the rights. Further, in today's society, these property holders are placing strnagleholds on competition and precluding any benefit to the society. The Digital Millenium Copyright Act (DMCA) is a perfect example of this point. Additionally, the idea of patenting a software application developed using code libraries and collaborative development... and the process of patenting things that occur as natural or induced natural phenomena.

We have swung the law too far over the edge.